The Washington PostDemocracy Dies in Darkness

Judge challenges Trump claim of ‘absolute immunity’ from Jan. 6 lawsuits

Former president, Trump Jr., Giuliani and Brooks urge judge to toss suits by House Democrats, Capitol Police officers alleging he incited violence

President Donald Trump salutes supporters from the Ellipse near the White House on Jan. 6, 2021. (Brendan Smialowski/AFP/Getty Images)

A federal judge challenged Donald Trump’s claim of “absolute immunity” from allegations that he incited the violent Jan. 6 Capitol riot as his attorneys asked Monday to toss out three lawsuits by Democratic House members and police officers seeking damages for physical and emotional injuries they incurred in the assault.

Arguing alongside lawyers for co-defendants Rudolph W. Giuliani and Rep. Mo Brooks (R-Ala.), Trump defense attorney Jesse R. Binnall asserted that any incendiary remarks before the assault by the then-president fell “dead-center” within his constitutional duty to ensure the nation’s election laws were faithfully executed and a president’s use of the bully pulpit to speak to the American people “freely and frankly on matters of public concern.”

U.S. District Judge Amit P. Mehta pushed back against attorneys on both sides during a nearly five-hour hearing in Washington. The hearing represented the latest round in the continuing national debate over Trump’s accountability for his role in the Jan. 6, 2021, Capitol attack that authorities said led to five deaths and assaults on nearly 140 police and delayed Congress’s confirmation of Joe Biden’s electoral college victory.

“Is there anything a president could say while president of the United States that could subject him to civil suit?” Mehta asked Binnall. “Is there anything a president could say or do campaigning as a candidate that would not receive immunity?”

Mehta gave little hint how he would rule on whether a federal jury in Washington may hear claims that the former president and others instigated and facilitated that day’s attack in violation of the Reconstruction-era Ku Klux Klan Act, which bars violent interference in Congress’s constitutional duties. But he said he would rule “quickly” on that claim, as well as whether a jury should consider whether Trump and his co-defendants are legally liable for injuries sustained by lawmakers and police during the deadly, hours-long breach of the Capitol by Trump supporters angered by his unfounded claims of election fraud.

Mehta, a 2014 appointee of President Barack Obama, is no stranger to the issue, at one point pushing back against the suggestion that Trump and other speakers were simply exhorting “peaceful and patriotic” protest.

“Let’s not recast what happened,” interjected Mehta, who also presides over cases involving several of the 700-plus defendants criminally charged in the Capitol breach by the Justice Department, including the lead conspiracy case involving alleged associates of the anti-government Oath Keepers. Plaintiffs assert that the mob interfered with Congress’s constitutional duties by force, intimidation or threat, Mehta said, adding: “That happened. The question is whether President Trump incited … or instigated that.”

“If there was an invitation to engage in criminal conduct, or in this case tortious [civilly liable] conduct, and that invitation was accepted,” Mehta asked, pressing co-defendants, "… is that enough in your view to plausibly allege a conspiracy” that could survive dismissal and reach a jury?

Read House Democrats' argument on why their lawsuit should not be dismissed

Trump and his co-defendants said no, with Binnall saying the lawsuits should never have been brought in the first place.

They moved to dismiss three civil suits: one brought by Rep. Bennie G. Thompson (D-Miss.) with 10 other lawmakers; another by Rep. Eric Swalwell (D-Calif.), a former prosecutor and Trump impeachment manager; and one by Capitol Police officers James Blassingame and Sidney Hemby. Thompson left his case in July after becoming co-chair of the House Jan. 6 committee. Another defendant, the Proud Boys group, has not responded to the litigation. The Proud Boys have a history of violent street clashes with left-wing groups and include people accused of leading parts of the Capitol attack.

Casting the lawsuits as “chock full of propaganda that are meant to achieve political rather than legal objectives,” Binnall urged Mehta to deny plaintiffs the opportunity “to score points against a political rival at the expense” of the Constitution’s bedrock principles of separation of powers and freedom of speech.

Separately, Giuliani’s defense called it “too far-fetched and outlandish” to believe the plaintiffs would successfully tie him and Trump to “a vast conspiracy to mastermind the attack on the Capitol.” Attorney Joseph D. Sibley IV argued that Giuliani’s call to Trump supporters that day for “trial by combat” was clearly hyperbolic and not literal, that he immediately condemned the riots as “shameful” and that he never referred to a march on the Capitol.

Mehta acknowledged that “put Giuliani in a different position.”

On Jan. 6, Congress marked one year since a pro-Trump mob attacked the Capitol. (Video: Adriana Usero/The Washington Post)

Mo Brooks urged a Jan. 6 crowd to ‘fight.’ Now his actions long before the insurrection face new scrutiny.

Plaintiffs disagreed, arguing Trump was acting not in his official capacity as president but as a failed political candidate and private citizen when he openly supported and encouraged those who used violence against election officials and his political opponents.

They asserted that Trump’s baseless and incendiary statements claiming the election was being “stolen” by fraud and his embrace of violence were part of a months-long conspiracy with others to subvert the results of the election, culminating with Brooks and Giuliani egging on the riot along with other speakers — including Donald Trump Jr. — at a fiery rally that morning at the White House Ellipse.

At the rally, the suits allege, President Trump whipped the crowd into a mob, encouraging attendees to “fight like hell” and march to the Capitol as he repeated false claims about the illegitimacy of the election.

The suits allege that Giuliani, acting as Trump’s attorney, urged lawmakers to delay the count in hopes of somehow preventing certification altogether and to pressure Trump’s running mate, Vice President Mike Pence, to overturn the result.

Rep. Eric Swalwell sues Trump over Jan. 6 riot, alleging he poses risk of ‘inciting future political violence’

“The First Amendment does not protect the military-style incursion into the Capitol led by the Oath Keepers; nor does it shield Trump and Giuliani’s incendiary remarks, which aroused and mobilized the assembled crowd with the purpose, and having the effect, of violently disrupting official proceedings of Congress,” wrote House lawmakers’ legal team, led by Joseph M. Sellers.

Joined by attorneys for the NAACP and in alignment with lead Swalwell attorney Phil Andonian, Sellers also argued Trump ignored warnings that violence was a foreseeable result and did nothing to calm the frenzied mob for more than an hour after rioting began, in a conspiracy to obstruct, by force or threat, the certification of the 2020 election results.

Read Trump’s latest motion to dismiss

“No one has a right to conspire, direct, and incite assaults on police officers … or to utter speech that is intended to incite violence or that is integral to criminal conduct,” added Patrick Malone and the Protect Democracy Project, which represent Blassingame and Hemby. Nor can the holder of even the nation’s highest office claim absolute immunity for “anything and everything he did … as long as he says he was acting as president and not as a sore loser candidate.”

Mehta highlighted plaintiffs’ claim that Trump plausibly approved rioters’ actions by doing nothing for hours to stop it, in contrast, for example, with Trump Jr., who texted his father’s chief of staff, Mark Meadows, at one point that afternoon to get President Trump to condemn the violence, saying it had “gone too far.”

“What do I do about the fact” that Trump didn’t do anything, Mehta asked. Sellers argued that Trump instead retweeted at 1:49 p.m. a video of himself rallying the crowd: “We will not take it anymore and that’s what this is all about. … You’ll never take back our country with weakness. You have to show strength.” And Trump told supporters that night: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Brooks is defending himself and argued that he cannot be sued because he was acting as a federal employee and member of Congress when he spoke.

At the rally, Brooks, the first member of Congress to declare that he would challenge the electoral college count certifying Biden’s victory, invoked bloodshed and asked the crowd, “Are you willing to do what it takes to fight for America?”